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2021 Supreme(Gau) 464
IN THE HIGH COURT OF GAUHATI (ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
SUMAN SHYAM, MARLI VANKUNG, JJ.
Anwar Hussain Barlaskar, S/o. Late Aftab Uddin Barlaskar & Anr. - Appellants
Versus
The State of Assam, Rep. by the P.P., Assam & Anr. - Respondents
Crl. A. No. 398 of 2019
Decided On : 27-10-2021
For the Appellant : Mr. A. Ahmed.
For the Respondents: Ms. B. Bhuyan, A.P.P.
Point of Law: The medical evidence in this case merely indicates injuries sustained by the victim by blunt force impact and the doctor i.e. PW-11 has not ruled out the possibilities of the injuries having been sustained due to falling on the ground.
Headnote:
Indian Penal Code,1860 - Sections 341/302/34 341/325/326 and 313 – Criminal Procedure Code,1973 - Section 164 and 313 – Murder- Appeal against conviction – Power to examine the accused – Appeal - Appellants have challenged judgement and order passed by learned Sessions Judge, in Sessions case convicting appellants under Sections 341/302/34 of Indian Penal Code for wrongfully restraining and committing murder and sentencing each of them to undergo rigorous imprisonment for life and also to pay fine of each, in default, to undergo imprisonment for two months for offence committed under Section 302 of IPC and also to undergo simple imprisonment for one month for offence committed under Section 341 of IPC.
Finding of the court: Court in case of such evidence, if pressed into service by defence counsel, would be binding upon prosecution - Viewed from that angle, court are constrained to hold that evidence adduced by prosecution strongly suggest that pursuant to an altercation between victim and accused persons, deceased had accidently fallen down and received head injuries from exposed stems of bamboo, which had resulted into his death - It is possible that due to altercation there was a scuffle between victim and accused But there is no evidence adduced by prosecution to show that accused persons had actually assaulted victim with an intent to cause death to him - For foregoing discussions, Court are of view that prosecution has failed to prove murder charge brought against appellants under Section 302 of IPC
Result: Appeal Allowed
JUDGMENT :
Suman Shyam, J.
1. Heard Mr. A. Ahmed, learned counsel appearing for the appellants. We have also heard Ms. B. Bhuyan, learned APP, Assam, appearing for the State/ respondent No.1. None has appeared for the informant/respondent no.2.
2. By filing this appeal, the two appellants have challenged the judgement and order dated 07/08/2019 passed by the learned Sessions Judge, Hailakandi, in Sessions case No. 109/2016 convicting the appellants under Sections 341/302/34 of the Indian Penal Code (IPC) for wrongfully restraining and committing murder of Md. Faruk Uddin Laskar and sentencing each of them to undergo rigorous imprisonment for life and also to pay fine of Rs.5,000/- each, in default, to undergo imprisonment for two months for the offence committed under Section 302 of the IPC and also to undergo simple imprisonment for one month for the offence committed under Section 341 of the IPC.
3. The brief facts and circumstances giving rise to the filing of the present appeal may be notice hereunder. On 08/02/2016, Md. Fariz Uddin Laskar had lodged an ejahar before the Officer-in-Charge of Hailakandi Police Station reporting that on 06/02/2016, at around 9 a.m. when his brother Md. Faruk Uddin Laskar was going to his vegetables field from their house, the accused persons, viz. Md. Altaf Hussain Barlaskar, Md. Anar Ali Barlaskar, Md. Nur Hussain Barlaskar and Md. Zakir Hussain Barlaskar, armed with dao,lathietc. had brutally assaulted him out of some old grudge, thereby, causing grievous injuries and bleeding to him. At that time, his cousin Md. Mustafa Ahmed went there to save his brother but the accused persons had brutally assaulted him also thereby causing grievous injuries to Mustafa as well. Hearing hue and cry, he along with some other persons, went to the place of occurrence and saved them from the clutches of the accused persons. Thereafter, Md. Faruk Uddin Laskar and Mustafa were taken to the S.K. Roy Civil Hospital, Hailakandi in a grievously injured state but since the condition of his brother (Faruk) was very critical, he was referred to the Silchar Medical College and Hospital (SMCH), wherein he has been undergoing treatment.
4. On receipt of the ejahar, Hailakandi PS Case No. 66/2016 was registered under Section 341/325/326/34 of the Indian Penal Code (IPC). However, since the victim succumbed to his injuries while undergoing treatment at the SMCH at Silchar, section 302 of the IPC was added.
5. The matter was taken up for investigation by the Police and during the course of investigation, the Investigating Officer (IO) had visited the place of occurrence, prepared rough sketch map, recorded the statement of the witnesses, seized the pieces of hard bamboo and arrested the accused persons. After the death of the victim, inquest was conducted over the dead body and the dead body as sent for post-mortem examination at the SMCH, Silchar. On being forwarded by the IO, the statement of witnesses, viz., Samsuddin Laskar, Mustafa Ahmed and Nurul Alam Laskar were recorded under Section 164 of the Cr.P.C.
6. After completing the investigation, the IO had submitted charge sheet against three accused persons, viz. appellant No.1 Md. Anwar Hussain Barlaskar, appellant No. 2 Altaf Hussain Barlaskar and another co-accused Zakir Hussain Barklaskar. However, Nur Hussain Barlaskar was not sent up for trial since the IO did not find any evidence against him. Based on the charge-sheet, charges were framed against the three accused persons under Sections 341/302/323/34 of the IPC. Since the accused persons had pleaded not guilty and claimed to be tried, the matter went up for trial.
7. In order to bring home the charges framed against the three accused persons, the prosecution side had examined as many as 14 witnesses. The statement of the accused persons under Section 313 of the IPC were recorded wherein, they had denied all the incriminating circumstances put to them. The defence side, however, did not adduce any evidence.
8. Based on
